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Subject: 90-79 -- OPINION, KAY v. EHRLER




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-79


RICHARD B. KAY, PETITIONER v. BREMER
EHRLER & KENTUCKY BOARD
OF ELECTIONS


on writ of certiorari to the united states court of appeals for the sixth
circuit

[April 16, 1991]




    Justice Stevens delivered the opinion for the Court.
    The question is whether an attorney who represents himself in a
successful civil rights action may be awarded "a reasonable attorney's fee
as part of the costs" under 42 U. S. C. MDRV 1988. {1}
    Petitioner is licensed to practice law in Florida.  In 1980, he
requested the Kentucky Board of Elections (Board) to place his name on the
Democratic Party's primary ballot for the office of President of the United
States.  Because the members of the Board concluded that he was not a
candidate who was "generally advocated and nationally recognized" within
the meaning of the controlling Kentucky statute, Ky. Rev. Stat. Ann. MDRV
118.580 (Michie 1982) (repealed in 1982), the Board refused his request.
    Petitioner filed a successful action on his own behalf in the District
Court, challenging the constitutionality of the Kentucky statute.  Kay v.
Mills, 490 F. Supp. 844, 852-853 (ED Ky. 1980).  The District Court held
that the statute was invalid, and entered an injunction requiring that
petitioner's name appear on the ballot.  Id., at 855.  Two years later, the
Kentucky General Assembly repealed the statute.  In 1986, however, it
enacted an identically worded statute, Ky. Rev. Stat. Ann. MDRV 118.581
(Michie 1982 & 1988 Supp.).  In 1987, petitioner again requested that his
name appear on the primary ballot, and when the Board initially refused his
request, petitioner again brought suit in the District Court, and
prevailed. {2}  This time, however, he requested a fee award under 42 U. S.
C. MDRV 1988. {3}
    The District Court denied petitioner's request for attorney's fees
under MDRV 1988 based on Falcone v. IRS, 714 F. 2d 646 (CA6 1983), cert.
denied, 466 U. S. 908 (1984). {4}  App. to Pet. for Cert. 14a.  The United
States Court of Appeals for the Sixth Circuit affirmed.  Kay v. Ehrler, 900
F. 2d 967 (1990).  The majority read the language of the statute as
assuming the existence of "a paying relationship between an attorney and a
client."  Id., at 971.  Moreover, it concluded that the purpose of the
statute was best served when a plaintiff hired an objective attorney --
rather than serving as both claimant and advocate -- to provide a
"filtering of meritless claims."  Ibid.  The dissenting judge emphasized
the statutory goals of promoting lawsuits that protect civil rights and
relieving the prevailing party of the burdens of litigation.  Id., at
972-973.
    We granted certiorari, 498 U. S. --- (1990), to resolve the conflict
among the Circuits on the question whether a pro se litigant who is also a
lawyer may be awarded attorney's fees under MDRV 1988.  The Circuits are in
agreement, however, on the proposition that a pro se litigant who is not a
lawyer is not entitled to attorney's fees. {5}  Petitioners do not disagree
with these cases, see Brief for Petitioner 9, n. 4, and we are also
satisfied that they were correctly decided.  The question then is whether a
lawyer who represents himself should be treated like other pro se litigants
or like a client who has had the benefit of the advice and advocacy of an
independent attorney.
    We do not think either the text of the statute or its legislative
history provides a clear answer.  On the one hand, petitioner is an
"attorney," and has obviously handled his professional responsibilities in
this case in a competent manner.  On the other hand, the word "attorney"
assumes an agency relationship, {6} and it seems likely that Congress
contemplated an attorney-client relationship as the predicate for an award
under MDRV 1988. {7}  Although this section was no doubt intended to
encourage litigation protecting civil rights, it is also true that its more
specific purpose was to enable potential plaintiffs to obtain the
assistance of competent counsel in vindicating their rights. {8}
    In the end, we agree with the Court of Appeals that the overriding
statutory concern is the interest in obtaining independent counsel for
victims of civil rights violations.  We do not, however, rely primarily on
the desirability of filtering out meritless claims.  Rather, we think
Congress was interested in ensuring the effective prosecution of
meritorious claims.
    Even a skilled lawyer who represents himself is at a disadvantage in
contested litigation.  Ethical considerations may make it inappropriate for
him to appear as a witness. {9}  He is deprived of the judgment of an
independent third party in framing the theory of the case, evaluating
alternative methods of presenting the evidence, cross-examining hostile
witnesses, formulating legal arguments, and in making sure that reason,
rather than emotion, dictates the proper tactical response to unforeseen
developments in the courtroom.  The adage that "a lawyer who represents
himself has a fool for a client" is the product of years of experience by
seasoned litigators.
    A rule that authorizes awards of counsel fees to pro se litigants --
even if limited to those who are members of the bar -- would create a
disincentive to employ counsel whenever such a plaintiff considered himself
competent to litigate on his own behalf.  The statutory policy of
furthering the successful prosecution of meritorious claims is better
served by a rule that creates an incentive to retain counsel in every such
case.
    The judgment of the Court of Appeals is affirmed.

It is so ordered.







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1
    The Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. 94-559, 90
Stat. 2641, as amended, 42 U. S. C. MDRV 1988.

2
    When the Board determined that petitioner was the same person who had
successfully challenged Kentucky's primary election law in 1980, the Board
added petitioner's name to the ballot.  The Magistrate found that the case
was not moot at that point because "[t]he laws in question remain on the
books and the problem posed for voters and future candidates, including the
[petitioner], remains unsolved without action."  App. to Pet. for Cert.
20a-21a (citation omitted).

3
    Petitioner requested both costs and an attorney's fee, and was awarded
the former, but not the latter.  Only the attorney's fee is at issue before
us.

4
    In Falcone, the Court of Appeals declined to award attorney's fees to a
pro se attorney in a successful action under the Freedom of Information Act
(FOIA), 5 U. S. C. MDRV 552.  The Court of Appeals reasoned that attorney's
fees in FOIA actions were inappropriate because the award was intended "to
relieve plaintiffs with legitimate claims of the burden of legal costs" and
"to encourage potential claimants to seek legal advice before commencing
litigation."  714 F. 2d, at 647.  The court relied on the fact that "[a]n
attorney who represents himself in litigation may have the necessary legal
expertise but is unlikely to have the `detached and objective perspective'
necessary to fulfill the aims of the Act."  Ibid. (citation omitted).

5
    See, e. g., Gonzalez v. Kangas, 814 F. 2d 1411 (CA9 1987); Smith v.
DeBartoli, 769 F. 2d 451, 453 (CA7 1985), cert. denied, 475 U. S. 1067
(1986); Turman v. Tuttle, 711 F. 2d 148 (CA10 1983) (per curiam); OwensEl
v. Robinson, 694 F. 2d 941 (CA3 1982); Wright v. Crowell, 674 F. 2d 521
(CA6 1982) (per curiam); Cofield v. Atlanta, 648 F. 2d 986, 987-988 (CA5
1981); Lovell v. Snow, 637 F. 2d 170 (CA1 1981); Davis v. Parratt, 608 F.
2d 717 (CA8 1979) (per curiam).

6
    The definition of the word "attorney" in Webster's Dictionary reads as
follows:

"[O]ne who is legally appointed by another to transact business for him;
specif: a legal agent qualified to act for suitors and defendants in legal
proceedings."  Webster's New Collegiate Dictionary 73 (1975).

Other dictionaries, both popular and specialized, also emphasize the agency
relationship between an attorney and his client in their definitions of
"attorney."  See, e. g., American Heritage Dictionary 140 (Second College
ed. 1982) ("A person legally appointed to act for another, esp. an attorney
at law"); Black's Law Dictionary 128 (6th ed. 1990) ("[A]n agent or
substitute, or one who is appointed and authorized to act in the place or
stead of another.  An agent, or one acting on behalf of another"); 1
Compact Edition of the Oxford English Dictionary 553 (1981 ed.) ("One
appointed or ordained to act for another; an agent, deputy,
commissioner").

7
    Petitioner argues that because Congress intended organizations to
receive an attorney's fee even when they represented themselves, an
individual attorney should also be permitted to receive an attorney's fee
even when he represents himself.  However, an organization is not
comparable to a pro se litigant because the organization is always
represented by counsel, whether in-house or pro bono, and thus, there is
always an attorneyclient relationship.

8
    Both the Senate and House Reports explain that the attorney's fee
provision was intended to give citizens access to legal assistance so that
they could enforce their civil rights:
    "In many cases arising under our civil rights laws, the citizen who
must sue to enforce the law has little or no money with which to hire a
lawyer.  If private citizens are to be able to assert their civil rights, .
. . then citizens must have the opportunity to recover what it costs them
to vindicate these rights in court."  S. Rep. No. 94-1011, p. 2 (1976).

The House Report, accompanying a bill that was similar in wording to the
enacted Senate bill, expressed the same concern:

"Because a vast majority of the victims of civil rights violations cannot
afford legal counsel, they are unable to present their cases to the courts.
In authorizing an award of reasonable attorney's fees, [this bill] is
designed to give such persons effective access to the judicial process
where their grievances can be resolved according to law."  H. R. Rep. No.
94-1558, p. 1 (1976).
    In their hearings, both Senate and House Subcommittees focused on the
need of average citizens to be able to afford lawyers so that they could
protect their rights in court.  See, e. g., Legal Fees, Hearings before the
Subcommittee on Representation of Citizen Interests of the Senate Committee
on the Judiciary, 93rd Cong., 1st Sess., pts. 1, 2, 3, 4, pp. 1-2, 3-4, 273
(1973) (addressing question whether coal miners were receiving adequate
legal coverage); id., at 466, 470-471, 505-509, 515 (addressing question
whether veterans were denied legal assistance by $10 contingent fee); id.,
at 789, 808-810 (Indians' access to lawyers); id., at 1127, 1253-1254
(average citizen cannot afford attorney); Awarding of Attorneys' Fees,
Hearings before the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the House Committee on the Judiciary, 94th
Cong., 1st Sess., pp. 60, 189, 192, 254-256, 292, 328 (1975) (private
citizens needed fee-shifting provisions to be made whole again).

9
    The ABA Model Code of Professional Responsibility (1977) describes the
potential conflict:

"The roles of an advocate and of a witness are inconsistent; the function
of an advocate is to advance or argue the cause of another, while that of a
witness is to state facts objectively."  EC 5-9.